Attorney Vaccination Status Becomes Subject of Investigation, Court Must Decide if Insurance Should Cover the Defense

Theodore Cooperstein worked as an assistant United States attorney in the Southern District of Mississippi. Part of his job was to appear in federal court as counsel for the government, and as such, he was insured under a federal employee professional liability policy. 

This policy would cover costs to defend against judicial sanctions and/or disciplinary proceedings should they arise out of alleged misconduct caused by Cooperstein while on the job. 

During the timeframe of June 2021 and October 2021, Cooperstein appeared in federal court as counsel on four separate occasions.  

Cooperstein was asked each time whether he was vaccinated against COVID-19. Here are his answers: The first instance, Cooperstein nodded his head in affirmation; the second occasion, he was recorded as stating he was vaccinated; thirdly, he answered “Yes, sir;” and finally, he responded that he was not vaccinated but had instead applied for an exemption from the vaccine requirement. 

The judge asked Cooperstein to explain his inconsistent responses and asked the counsel to show cause as to why he should not be sanctioned for making one or more misrepresentations to the court.  

He was subjected to an investigation by the court. 

When the judge first asked Cooperstein to elaborate on his responses in court, the federal employee submitted a claim to its federal employee professional liability policy holder, Scottsdale Insurance Company.  

The very next day, Scottsdale sent a denial letter, rejecting Cooperstein’s claim. The denial letter stated that alleged misrepresentations in court did not qualify under the policy as “misconduct arising from an act, error or omission in professional services rendered.” 

In December 2021, Cooperstein sought declaratory judgment, holding that the policy should cover the costs of defense for the investigation and any proceedings held as a result. In his argument against the insurer, Cooperstein alleged breach of contract, breach of the duty of good faith and dealing, and bad faith. 

Scottsdale filed a motion for partial summary judgment. It argued that Cooperstein “was not engaged in furthering the affairs or services of his employer when he allegedly misrepresented his personal medical status,” and therefore, the policy would not apply. 

Meanwhile, Cooperstein was sanctioned in the amount of $6,000 in July 2022. He later retired the same year. 

Scorecard: In March 2023, the court ruled in favor of Cooperstein, deciding “the misrepresentations were clearly made while the [insured] was furthering the affairs or services” of the U.S., triggering the insurance policy’s duty to defend. 

Takeaway: We may seem like we’re past the hubbub around mandatory COVID vaccinations, but there will likely be more to contend with as the years go on. Reviewing what company policy is in tandem with how insurance will approach the subject is vital. &